THE PAIN GOES ON

The urgent need for legislation governing periodic payments in personal injury cases was highlighted recently in the High Court in the case of an eight-year-old boy who is suffering brain damage from birth. This case was before the High Court two years ago when an interim payment of €1.4 million was made in anticipation of the passing of legislation, then under consideration by the government, providing for periodic payments in cases where there are substantial future care requirements.

These so-called catastrophic injury cases arise from a variety of causes including birth accident, medical negligence and road traffic accidents. The victims of such accidents invariably have suffered very serious debilitating injury as a consequence of which they require constant care usually provided by the family in very difficult circumstances. In this particular case the victim is in a wheelchair suffers from this dyskinetic cerebral palsy and can only communicate with his eyes.

Currently the law only provides for payment of a lump sum to the victims in settlements negotiated by the victim’s lawyers and approved by the courts.

With the help of actuarial evidence the future costs of care can be crudely assessed as a lump sum. However, with advancements in medicine it is always difficult to anticipate future care costs because of new therapies and increasing costs. In addition, certain therapies can become more costly and of course the victims themselves may deteriorate after the case is over, and further unexpected costs will inevitably arise.

In many cases the victims life expectancy is substantial and it is virtually impossible to foresee with any accuracy the level of financial support required to ensure proper treatment and quality of life for these unfortunate people. In short lump sum awards are woefully inadequate in almost all such cases and give rise to injustice for victims.

As far back as 1996, the Law Reform Commission published a comprehensive report entitled : REPORT ON PERSONAL INJURIES PERIODIC PAYMENTS AND STRUCTURED SETTLEMENTS in which it examined in great detail the case for an alternative method of dealing with these catastrophic cases . Alternative methods then operating in the USA, Canada, Australia and New Zealand all common law jurisdictions similar to our own examined in great detail and they recommended the introduction of legislation for periodic payments and even drafted a draft bill in the matter.

In 2013, the then Minister for Justice and Law Reform, Alan Shatter brought proposals to introduce legislation that this has not advanced to any degree and is now perhaps unlikely to be implemented by the current Dail.

Because this legislation has been promised for some considerable time recently the courts have adopted a wait-and-see approach in anticipation of detailed legislation being passed. A number of recent cases have been adjourned on the basis of interim awards being made in the hope that periodic payments would be introduced.

The drawbacks for victims and their families are not least the lack of finality and closure on these unfortunate cases where they are being dragged back into court unnecessarily.

In some cases such as this case, the family wanted closure and were looking for a lump sum in full and final settlement. This of course may not be benefit the victim in the long-run, but it is of course entirely understandable in circumstances where their main priority is to care for the victim rather than continue with legal action and all that that entails.

These are just some of the drawbacks for the unfortunate victims of negligence. The introduction of periodic payments legislation would be a boon to such victims and would remove the element of risk associated with settling cases on a lump sum basis.

It is hoped that this legislation, which has long been called for will finally be introduced and remove this uncertainty for the victims of these catastrophic injury cases.

Sean O’Riordanis a Partner with FitzGerald Solicitors practising in Litigation. FitzGerald Solicitors are located in 6 Lapps Quay, Cork.

Please note that you should contact your Solicitor for specific legal advice tailored to your needs as each case is different and the foregoing article is not intended to provide legal advice.

*In contentious business, a Solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.